AMAZON’S withdrawal from the controversial River Club development could “rob” Cape town of a R7.4 billion cash injection for its “ailing” economy, while Khoisan people argued their heritage was not up for sale.
These were among a myriad arguments presented before Western Cape High Court deputy judge president Patricia Goliath during a three-day marathon sitting to hear an application to halt further construction of what is to be tech-giant Amazon’s African headquarters.
The urgent application was brought by the Observatory Civic Association and the Goringhaicona Khoi Khoin Indigenous Traditional Council against the developers, the Liesbeek Leisure Properties Trust, the City of Cape Town, the Western Cape government, and other entities.
The land, at the confluence of the Black and Liesbeek rivers, is regarded as sacred by the Khoisan people, and those opposed to the development said it would alter the site's fundamental qualities, including its intangible historic and cultural significance.
The Goringhaicona Khoi Khoin Indigenous Traditional Council also view the area as ground zero for "colonial" land dispossession in South Africa.
The developers told the court that, should the interim relief be granted, it would result in a construction delay of between one and two years.
"Any such delay would most certainly see Amazon terminating the development and lease agreements. Even a reduced delay of six months will result in termination by Amazon," the court was told.
However, the Observatory Civic Association hit back, saying the anticipated economic fallout from the court granting the relief was "exaggerated, overstated and speculative".
Lawyers for the City of Cape Town argued the development would create more than 5 000 direct jobs and in excess of 13 000 indirect ones.
It further argued that the development might increase economic output by R7.4 billion over a period of approximately three to five years.
"The city is facing an economic crisis due to Covid-19, and the delay will terminate the development. Integral to the development will be affordable housing," the court was told.
According to court papers, the development agreement provides for an anticipated completion date of 30 November 2022 and the handover of the premises on 1 December 2022.
In his affidavit for the organisation, Observatory Civic Association chairperson Professor Leslie London said Amazon was committed to commissioning the development of a campus as its regional headquarters and if it was not built on the River Club site, it could go ahead on one of a number of suitable sites in Cape Town.
"l am informed that a number of developers proposed more than one site when Amazon issued a request for proposal in 2018. Some of the sites included the V&A Waterfront and Century City," said London.
He also submitted that, despite the developers being aware of the impending reviews, repeated written requests to hold off on the development until the review of the environmental authorisation and land use approval, and the sensitivity of the living heritage issues involved, they "unilaterally" forged ahead with excavation and construction on the site.
In court papers, trustee of the Liesbeek Leisure Properties Trust Jody Aufrichtig also submitted that Amazon had received a number of bids and there "could be little doubt" that alternate opportunities would be offered, or the e-commerce giant would negotiate fresh leases in its existing premises across the country.
Aufrichtig said the move would also have financial consequences for the Liesbeek Leisure Properties Trust, which had financial agreements with Rand Merchant Bank, as well as commitments to the First Nations.
The group of Khoisan people supports the development and believes it has secured a space where the culture and heritage of indigenous people will be memorialised.
The mega development consists of 18 major buildings, some of which are approximately 45m high.
The Liesbeek Leisure Properties Trust intends leasing 150 000 square metres of floor space to Amazon for its African headquarters, but also intends to construct housing and other facilities on the site.
The court also heard submissions on the protection of the intangible heritage of indigenous peoples under international law.
The Forest Peoples Programme, an international NGO that fights for the rights of indigenous peoples, was admitted as a friend of the court.
The arguments also centred on the adequacy and extent of meaningful consultation with all interested and affected parties.
Lawyers for the applicants framed their arguments in terms of the country's history, pleading with the court to take this into consideration.
"Our country is built upon centuries-long, shameful brutality towards the first nation and indigenous people.
"Most importantly for this case, the brutality towards the first nation and indigenous people has been aimed at dispossessing them of their identity and dignity.
"All of this has been in the quest for development and exploitation of the country’s resources, a quest over time aimed at enriching and privileging one racial grouping at the expense of all others," the applicants submitted.
The lawyers also submitted that for their survival as Khoisan communities, they could look only to sections 30 and 31 of the Constitution for the protection and retention of their dignity and sense of identity.
"That is why this case is so important. It is common cause that it concerns living heritage associated with a natural cultural landscape,“ the court was told.
“The upshot of the development application process is that the first nations groupings have successfully been divided and their fate is now left in the hands of the developers, not their own hands," the court heard.
Outside court, First Nations’ spokesperson Zenzile Khoisan said he was optimistic about the court’s decision.
“For the first time, we’ve secured a space in the development where our culture and heritage will be memorialised for future generations,” Khoisan said.
Goringhaicona Khoi Khoin Indigenous Traditional Council spokesperson Tauriq Jenkins said he was happy with the evidence submitted in court.
“Our message is clear, and will remain so: our heritage is not for sale, not even to the richest man in the world.”
Judgment in the matter has been reserved.